PROCEDURE ESTABLISHED BY LAW VIS-À-

VIS DUE PROCESS: AN OVERVIEW OF RIGHT

TO PERSONAL LIBERTY IN INDIA

Dr. K. S. Rathore*

I. Introduction
The concept of right to ‘Life and Liberty’ as enshrined under
Article 21 of the Constitution of India, being a guaranteed fundamental
right undoubtedly is very wide in its scope and applicability and with the
advent of the modern strides in jurisprudence, with revolutionary
pronouncements by the Apex court in judgment after judgment, especially
after Maneka Gandhi1, over past three decades or so has assumed wider
connotations and implication. Under this noble concept everyone in this
country has been guaranteed the right to life and liberty. Indian Judiciary
though is restrained, in many ways has evolved itself as a savior of mankind
by applying its judicial activism. The realist movement the latest branch of
sociological jurisprudence which concentrates on decisions of law courts,
regard and contend that law is what Courts say2. Public interest litigation
changed the character of judicial process by expending the locus standi
rule3. Right to life and personal liberty is the most cherished and pivotal
fundamental human rights. The Indian Supreme Court has created major
reforms in the protection of human rights. Taking a judicial activist role,
the court has put itself in a unique position to intervene when it sees
violations of these fundamental rights.
The right to protection of life and liberty is the main object of
Article 21 and it is a right guaranteed against state action as distinguished
from violation of such right by private individual Under Art. 21 right to life

* Dr. K.S. Rathore (M.A., LL.M., NET, Ph.D), Principal, Unity Law College, Rudrapur
of Kumaun University Nainital.
1
Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248.
2
See also, Dr. K.S. Rathore, “Role of Judicial Activism towards protection and promotion
of constitutional rights”, All India Reporter Sep. 2010, Vol. 97, Part - 1161.
3
Prof. (Dr.) D.K. Bhatt, “Judicial Activism through Public Interest Letigation: Trends
and Prospects”, Indian Bar Review Vol. XXV (1) 1998.
78 Uttarakhand Judicial & Legal Review

includes the right to live with “Basic Human Dignity” with the necessities
of life such as nutrition clothing, foods, shelter over the head, facilities for
cultural and socio-economic well being of every individual. Art. 21 protects
the “Right to life” a guaranteed and derived there from the minimum
needs for existence including a better tomorrow.
Article 21, though couched in negative language, confers on every
person the fundamental right to life and personal liberty which has become
an inexhaustible source of many other rights 4. On the question of
applicability of Art. 21 to non-citizens, the Supreme Court has emphasized
that even those who come to India as tourists also “have the right to live,
so long as they are here, with human dignity, just as the state is under an
obligation to protect the life of every citizen in this country, so also the
state is under an obligation to protect the life of the persons who are not
citizens”5. These rights have been given paramount position by our courts.6
The Supreme Court of India played a vital role in almost every
part of the society through its self generated concept of judicial activism7.
In the area of human rights it has been facilitated in considerable measure
by PIL. Executive excesses resulting in denial of basic rights of detenus
and under trials have continued to engage the court’s attention in this
jurisdiction which has made possible the access of these causes to the
court in a direct and expeditious manner.8
The 5th Amendment of the U.S. Constitution lays down inter alia
that “no person shall be deprived of his life, liberty or property, without
due process of law”. In India, this expression was changed to procedure
established by law. In the United States this phrase “due process” has
been one of the areas of Constitutional law involving more cases and
controversies.

4
Bhagwati, J. in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC
597, 620.
5
Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 at 998: (2000) 2 SCC
465.
6
Kehar Singh v. Union of India, (1989) 1 SCC 204: AIR 1989 SC 653.
7
See also, Dr.K.S.Rathore, “Historical Overview of Judicial Activism in India”, Indian
Bar Review Vol. XXXIX (2) 2012.
8
S. Muralidhar, “Public Interest Litigation” Annual Survey of Indian Law Vol. XXXI :
1995.
Procedure Established by Law vis-a-vis due process : ........ 79

Due process consists of two parts: procedural and substantive.

Procedural due process requires fair procedure, i.e., notice and hearing.
Substantive due process, on the other hand examines substantive content
of legislation9.
The expression “procedure established by law” means procedure
laid down by statute or procedure prescribed by the law of the state10.
Accordingly, first there must be a law justifying interference with the
person’s life or personal liberty, and secondly, the law should be a valid
law, and thirdly, the procedure laid down by the law should have been
strictly followed. In the absence of any procedure prescribed by the law
sustaining the deprivation of personal liberty, the executive authorities shall
violate Article 21 of the interfere with the life or personal liberty of the
individual.
Article 21 was confined to life and personal liberty and did not
include property. But even with regard to liberty, the makers of the
Constitution were apprehensive of extensive judicial review. They had
provided for preventive detention, which till then had been used only during
emergencies such as war or rebellion. The words ‘procedure established
by law’ was specific and it was hoped that they would not give any scope
for judicial veto against such legislation. While doing so, they unknowingly
made the valuable fundamental right to life and liberty entirely dependent
on the goodwill of the legislature.11 Intervening in this debate, Dr. B.R.
Ambedkar had said:12
“The question of ‘due process’ raises, in my judgment, the
question of the relationship between the legislature and the
judiciary to decide whether any particular law passed by the
legislature is ultra vires or intra vires in reference to the powers
of legislation which are granted by the Constitution to the
particular legislature….. The ‘due process clause’, in my
judgment, would give the judiciary the power to question the
law is in keeping with certain fundamental principles relating

9
Dr. K.C. Joshi, ‘The Constitutional law of India’, Ist (ed.) 2011 p.244
10
V.N. Shukla; Constitution of India 11th ed. P.199.
11
S.P. Sathe; “Judicial Activism in India Transgressing Borders and Enforcing Limits” 2nd
(ed.) Oxford University press.
12
CAD VOL. 7, P. 1000.
80 Uttarakhand Judicial & Legal Review

to the right of the individual. In other words, the judiciary would

be endowed with the authority to question the law not merely on
the ground whether the law was good law, apart from the
question of the powers of the legislature making the law… The
question now raised by the introduction of the phrase ‘due
process’ is whether the judiciary should be given the additional
power to question the laws made by the State on the ground
that they violate certain fundamental principles.”

II. Strict interpretation era and Governmental reaction to

emerging trends of “judicial activism” and activist judges
In A.K. Gopalan v. State of Madras 13 it was held that the
expression “procedure established by law” means procedure enacted by
a law made by the state. The Supreme Court, by a majority, rejected the
argument that the “Law” in Article 21 is used in the sense of jus and lex
the just law and that it means the principles of natural justice on the
analogy of “due process of law” as interpreted by the American Supreme
Court. That in effect amounted to holding that Article 21 was a protection
only against the executive and not against the legislature. This interpretation
was taken to its logical end in ADM, Jabalpur v. Shivkant Shukla14
where the Supreme Court held that Article 21 was the sole repository of
the right to life and personal liberty against its illegal deprivation by the
executive and in case enforcement of Article 21 was suspended by a
presidential order under Article 359, the court could not enquire whether
the execution action depriving a person of his life or personal liberty was
authorized by law.
It was contended that the obligation of the Government to act
according to law stems from the suspension of the rule of law, and the
suspension of Article 21 did not automatically entail the suspension of rule
of law, the Supreme Court, with the dissent of Khanna, J., legitimized the
suspension of the writ of habeas corpus during the period of Emergency
on the basis of higher claims of national security.15

13
AIR 1950 SC27.
14
(1976) 2 SCC 521: AIR 1976 SC 1207.
15
V.N. Sukla, ‘Constitution of India’, 11th (ed.).
Procedure Established by Law vis-a-vis due process : ........ 81

The majority opinions by and large relied primarily on the language

of the Presidential Order. The order, unlike the order of 1962 impugned in
Makhan Singh16 which was confined to detentions under the Defence of
India Act, and the rules made under it, was of general nature which applied
to all detentions without reference to any law.
Before Maneka Gandhi17 there were few instances where the
judges played positivist role by giving their majority or minority judgments.
In this connection since 1951, questions have been raised the scope of the
constitutional amending process in Article 368. The basic question raised
has been whether the Fundamental Rights were amendable so as to dilute
or take away any fundamental right through a constitutional amendment?
In Shankari Prasad Singh v. Union of India 18, the first case
on the above question came before the Supreme Court for interpretation.
The court held that the terms of Article 368 are perfectly general and
empower Parliament to amend the Constitution without any exception.
The same question was raised again after 13 years in 1964 in Sajjan
Singh v. State of Rajasthan.19 The conclusion of the Supreme Court in
Shankari Prasad as regards the relation between Arts. 13 and 368 was
reiterated by the majority. Though there of the five judges (Gajendragadkar
C.J. and Wanchoo and Dayal JJ.) in that case fully approved Shakari
Prasad case two of them (Hidayatullah and Mudholkar, JJ.) in their
separate but concurring opinions expressed serious doubts whether
fundamental rights created no limitation on the power of amendment.
As will be seen, Golak Nath20, the next case, was based on
Hidayatullah, J’s argument of non-amendability of Fundamental Rights,
but Kesavananda was based on Mudholkar, J’s view of basic features.
It is worth noting that these two judges who delivered these two
minority opinions were considered as positivist judges and it was their
approach that played a significant role in the Indian judiciary in later years.
Perhaps, encouraged by the above-stated remarks of these two
judges, the question whether any of the Fundamental Rights could be
16
Makhan Singh v. State of Punjab, AIR 1964 SC 381.
17
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
18
AIR 1951 SC 458.
19
AIR 1965 SC 845.
20
L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1673 : 1967 (2) SCC 762.
82 Uttarakhand Judicial & Legal Review

abridged or taken away by parliament in exercise of its power under

Article 368 was raised again in Golak Nath in 1967.21
The majority now held, overruling the earlier cases of Shankari
Prasad and Sajjan Singh23, that the Fundamental Rights were non-
22

amendable through the Constitutional amending procedure set out in article

368.
The majority judgment had taken the view that the word “law” in
Art. 13 included a constitutional amendment as well, not be curtailed or
diluted.24
In, 1971, Parliament enacted the Constitution (Twenty Fourth)
Amendment Act introducing certain modification in Art.13 and 368 to get
over the Golak Nath ruling and to assert the power of parliament, denied
to it in Golak Nath, to amend the Fundamental Rights.
As could be expected, the Constitutional validity of both the
Amendments, viz, 24th and 25th, was challenged in the Supreme Court
through an Art.32 writ petition in Kesavananda Bharati v. State of
Kerala25. The matter was heard by a bench consisting of all the 13 judges
of the court because Golak Nath, the 11-judge Bench decision was under
review.
The court now held that the power to amend the Constitution is to
be found in Art. 368. The amending power was now subjected to one
very significant qualification, viz, that the amending power cannot be
exercised in such a manner as to destroy or emansculate the basic or
Fundamental Features of Constitution.
The supersession of the three senior judges (Shelat, Hegde and
Grover JJ.) in the matter of the appointment of the Chief Justice of the
Supreme Court, on the day after the Supreme Court delivered its judgment
in the Fundamental Rights case ignited a controversy throughout the
Country.26

21
L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1673 :1967 (2) SCC 762.
22
AIR 1951 SC 458.
24
Supra no. 18.
25
AIR 1973 SC 146.
26
K. Subba Rao, “The Supersession of Judges - The Price of Executive Interference” “A
Judiciary made to Measure” Edited by N.A. Palkhivala.
Procedure Established by Law vis-a-vis due process : ........ 83

After the Emergency the fierce light of controversy has been

turned on the Supreme Court. The controversy was sparked off by the
incredible order passed by the Supreme Court in the A.D.M. Jabalpur27
and this fierce light has blazed even more fiercely because when faced
with the stern test posed by the Emergency the High Court’s rose to the
occasion by upholding the rule of law and the personal liberty of citizens.
Faced with the same test the Supreme Court sank under the test when in
the Habeas Corpus case, it passed an order which in effect declared
that law had ceased to operate in India is respect of the personal liberty
of the citizen. If for example, Khanna J. had been preventively detained
for delivering, a brave dissenting judgment, a judgment which the censor
had blacked out, no court could have given him relief against such
outrageous violation of the law.28
Mrs. Gandhi had superseded Khanna J., the senior most judge,
for the office of the Chief Justice of India because of his brave dissenting
judgment in the Habeas Corpus case.

III. ‘Procedure established by law’ in pre- Maneka Gandhi era

Immediately after the Constitution became effective, the question
of interpretation of these words arose in the famous Gopalan29 where
the validity of the Preventive Detention Act, 1950, was challenged. The
main question was whether Article 21 envisaged any procedure laid down
by a law enacted by a legislature or whether the procedure should be fair
and reasonable.
On behalf of Gopalan, an attempt was made to persuade the
Supreme Court to the reasonableness of the Preventive Detention Act, or
for that matter, any law depriving a person of his personal liberty. One of
the main argument was the expression ‘procedure established by law’
introduces into India the American concept of procedural due process
which enables the courts to see whether the law fulfils the requisite
elements of a reasonable procedure.
The words ‘procedure established by law’ was also construed
liberally to include all those essential aspects of procedure that constitute

27
A.D.M. Jabalpur v. Shivkant Shukla AIR 1976 SC 1207.
28
H.M. Seervai, “Constitutional Law of India”, 4th (ed.) vol.3.
29
A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88.
84 Uttarakhand Judicial & Legal Review

the due process of law. The makers of the Constitution had purposely
avoided the use of that expression because they were apprehensive of
the import of the substantive due process concept into the Constitution.
But procedural due process provides the essentials of the rule of law. In
Gopalan, the court had held that the procedure established by law meant
the procedure prescribed by the enacted law. Between the two meanings
of the word ‘law’, namely ‘lex’ (enacted law) and ‘Jus’ (Justice), the
court had chosen the former and rejected the letter30.
On the other hand, Fazl Ali, J., disagreeing with the majority view,
held that the principle of natural justice that ‘no one shall be condemned
unheard’ was part of the general law of the land and same should
accordingly be read into Art. 21.
It was contended in Gopalan that the expression ‘procedure
established by law’ Art. 21 was Synonymous with the American concept
of ‘due process’ and therefore, the reasonableness of the Preventive
Detention Act, or for that matter, of any law affecting a person’s life or
personal liberty, should be justifiable in order to assess whether the person
affected was given a right of fair hearing. The Supreme Court rejected
the contention giving several reasons:
First, the word ‘due’ was absent in Art. 21. This was a very
significant omission for the entire efficacy of the procedural due process
concept emendates from the word ‘due’.
Secondly, the draft Constitution had contained the words ‘due
process of law’ but these words were later dropped and the present
phraseology adopted instead. This was strong evidence to show that the
Constituent Assembly did not desire to introduce into India the concept of
procedural due process.
Thirdly, the American doctrine generated the countervailing, but
complicated, doctrine of police power to restrict the ambit of due process.
If the doctrine of due process were imported into India then the doctrine
of police power might also have to be imported which would make things
very complicated31.

30
S.P. Sathe; “Judicial Activism in India Transgressing Borders and Enforcing Limits” 2nd
(ed.) Oxford University press.
31
M.P. Jain, ‘Indian Constitutional law’ 5th (ed.) pp 1260-1263.
Procedure Established by Law vis-a-vis due process : ........ 85

The judgment in ADM, Jabalpur v. Shiv Kant Shukla 32 has

been characterized as one of the worst decisions rendered by the Supreme
Court in its entire career because it struck at the very foundations of
Constitutionalism and the rule of law in the country.
The most crucial question which was raised in this connection
was regarding the scope of judicial review of a detention order issued
under the provisions of MISA. Was it possible to challenge an order of
preventive detention on the ground that it was inconsistent with the
provisions of MISA, or that it was mala fide.
By a majority 4 to 1 the Supreme Court overruled the views
expressed by the various High Courts and held that in view of the
presidential order of 1975, no person had any Locus Standi to move any
petition before a high court under Art. 226 for a writ of habeas corpus, or
any other writ, to challenge the legality of a detention order or any ground
whatsoever, e.g., it was not under, or, in compliance with the Act, or was
illegal, or was based on extraneous considerations.
Khanna, J., maintained that even in the absence of Art. 21, the
State has no power to deprive a person of his life or liberty without the
authority of law. “This is the essential postulate and basic assumption of
the rule of law and not of men in all civilized nations. Without such sanctity
of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning.”

IV. “Procedure established by law” after Maneka Gandhi

The word ‘life’, ‘personal liberty’ and ‘procedure established by
law’ were debatable among the members of the Constituent Assembly.
The most important words in this provision are procedure established by
law.
Judicial activism can be attributed to the court to merely two of
its path breaking, pioneering decisions viz., Maneka Gandhi v. Union of
India33 and Sunil Batra v Delhi Administration34. Notwithstanding the
long, tedious and heated debate that occurred in the Constituent Assembly
on the issue of whether ‘due process of law’ should be the guiding beacon

32
AIR 1976 SC 1207 : (1976) 2 SCC 521.
33
Supra no. 1.
34
AIR 1980 SC 1579.
86 Uttarakhand Judicial & Legal Review

for article 21 and its rejection, the Supreme Court in Maneka Gandhi v.
Union of India35 held that procedure established by law meant procedure
that eventually was reasonable fair and just. This decision rendered void
the plain and simple meaning of ‘procedure established by law’and
introduced for the first time the grand canon of ‘due process of law’. In
Sunil Batra v. Delhi Administration36 the court accepted a mere epistle
addressed to the chief Justice of India as writ petitions and decided to act
upon it. The case redefined the scope of Locus Standi under the Indian
Constitution and introduced what later came to be known as the epistolary
jurisdiction. There two judgments echo the core of judicial activism in
India.
In State of Maharasthra v. Praful B. Patel37, a Division Bench
of S.N. Variava and B.N. Agrawal, JJ. of the Supreme Court considered
an important issue whether recording of evidence by way of video-
conferencing violated ‘procedure established by law’ ? Section 373 of the
Code of Criminal Procedure, 1973 provides that evidence in the course of
trial or other proceedings shall be taken in the presence of the accused or
in the presence of his pleader except as otherwise expressly provided. It
was contended that video conferencing could not be allowed as the rights
of an accused person under Article 21 cannot be subjected to a procedure
involving visual reality. The court taking into account the advancement of
science and technology held that video-conferencing has nothing to do
with virtual reality so long as the accused and his pleader are present
when evidence is being recorded by video-conferencing. Such evidence,
if recorded in the presence of the accused would fully meet the
requirements of sec. 373 Cr.P.C. Recording of such evidence would be
as per ‘procedure’ established by law and valid under Article 21 of the
Constitution of India.38

V. ‘Free, fair and speedy trial’ as a necessary corollary of

‘procedure established by law’
“A free and fair trial is a sine qua non of Article 21 of the
Constitution. It is well established law that justice should not only be done
35
Supra no. 1.
36
AIR 1978 SC 1675 : AIR 1980 SC 1579: (1980) 3 SCC 488.
37
AIR 2003 SC 2053 : (2003) 4 SCC 601.
38
AIR 2003 SC 2053, para 19.
Procedure Established by Law vis-a-vis due process : ........ 87

but it should be seen to have been done. If the criminal trial is not free
and fair and not free from bias, judicial fairness and the criminal justice
system would be at stake shaking the confidence of the public in the
system and woe would be the rule of law. It is important to note that in
such a case the question is not whether the petitioner is actually biased
but the question is whether the circumstances are such that there is a
reasonable apprehension in the minds of the petitioner39.”
In Zahira Habibulla40 free and fair trial the atmosphere in which
the case is tried should be conductive to the holding of a fair trial. The
absence of a congenial atmosphere for such a fair and impartial trial was
held to be a good ground for transfer of case from Gujarat to Maharashtra
further, the court said, the golden thread which runs said through all the
decisions cited on behalf of the parties, is that justice must not only be
done, but must also be seen to be done.
The liberty of an accused cannot be interfered with except under
due process of law. The expression ‘due process of law’ shall deem to
include fairness in trial. The right of the accused with regard to disclosure
of documents is a limited right but is codified and is the very foundation of
fair investigation and trial. Every effort should be made by the print and
electronic media to ensure that the distinctions between trial by media and
informative media should always be maintained. Trial by media should be
avoided particularly, at a stage when the suspect is entitled to the
Constitutional protections. Invasion of his rights is bound to be held as
impermissible.41
In Nupur Talwar v. Central Bureau of Investigation Anr. 42 a
Division Bench of the Supreme Court consisting A.K. Patnaik and Jagdish
Singh Khehar JJ. held that while dealing with issues as in the instant case,
High Courts and this Court have repeatedly observed in their orders, that
the trial court would determine the controversy uninfluenced by observations
mad. Yet, inferences and conclusions drawn by superior courts, on matters
which are pending adjudication before trial courts (or other subordinate

39
[(2004) 3 SSC 788]: (AIR 2004 SC 2753:2004 AIR SCW 1240).
40
Zahira Habibulla H.Sheikh v State of Gujarat, AIR 2004 SC 3114: 2004 AIR SCW
2325.
41
Sidhartha v Vashisht @ Manu Sharma v. State (N.C.T. of Delhi). AIR 2010 SC 2352.
42
AIR 2012 SC 1921.
88 Uttarakhand Judicial & Legal Review

courts) cannot be easily brushed aside. I shall, therefore, endeavor not to

pre-maturely record any inferences which could/would prejudice one or
the other side.
Fair trial includes open trial of an offender where the public, media,
etc. have full access which is also a requirement of section 327, Cr P C.
A trial held inside jail premises cannot be considered to be unfair for this
reason alone it the lawyers, media and public were free to watch the
court procedures. In Md. Shahabuddin v. State of Bihar43 in exercise
of its administrative powers under Cr. P.C., the Patna High Court had
issued the impugned notification that for expeditious trial, all pending session
cases against the appellant shell be tried inside the Siwan district jail
premises. The court found nothing wrong in the impugned notification as
the trial continues to be fair irrespective of the place where it is held
provided all are allowed subject to security.
VI Amendment of the US Constitution gives right to a speedy
trial to the accused person. There is no express provision in Indian
Constitution. In Mohd. Husain alias Julfikar Ali v. State (Govt. of NCT),
Delhi44, the court held that legal assistance to a poor person facing trial
whose life and personal liberty is in jeopardy is mandated not only by the
Constitution and the Code of Criminal Procedure but also by International
Covenants and Human Rights Declarations. If an accused too poor to
afford a lawyer is to go through the trial cannot be regarded as reasonable,
fair and just.
In Mohammed Ajmal Mohammed Amir Kasab v. State of
Maharashtra45, 2 Judges Bench consisting justices Aftab Alam and
Chandramauli Kr. Prasad of the Supreme Court held that the right to be
defended by a legal practitioner comes into force only on the
commencement of trial as provided under S. 304 of the Cr.P.C. He needs
a lawyer at the stage of his first production before the Magistrate, to
resist remand to police or jail custody and to apply for bail. He would
need a lawyer when the charge-sheet is submitted and the Magistrate
applies his mind to the charge-sheet with a view to determine the future
course of proceedings. He would need a lawyer at the stage 3 of framing

43
(2010) 4 SCC 653.
44
2012 Cri.L.J. SC 1069.
45
2012 Cri. L. J. SC 4770.
Procedure Established by Law vis-a-vis due process : ........ 89

of charges against him and he would, of course, need a lawyer to defend

him in trial. It is therefore, the duty and obligation of the Magistrate before
whom a person accused of committing a cognizable offence is first
produced to make him fully. Aware that it is his right to consult and be
defended by a legal practitioner and, in case he has no means to engage a
lawyer of his choice that one would be provided to him from legal aid at
the expenses of the state. The right flows from Articles 21 and 22(1) of
the Constitution and need to be strictly enforced. Supreme Court as such
directed all the Magistrates in the country to faithfully discharge the
aforesaid duty and obligation and further make it clear that any failure to
fully discharge the duty would amount to dereliction in duty and would
make the concerned Magistrate liable to departmental proceedings.
Thus, in Union of India v. G.S. Bajwa46, an Air Force officer
claimed that he has been denied legal aid and thus his right to life has
been infringed. There is no provision for such of such right in the
Constitution of India. Law’s delay is proverbial in India. Hundreds and
thousands under-trial prisoners languish in jails in inhuman conditions for
decades. The mental agony, expense and strain which a person proceeded
against in criminal law has to undergo and which, coupled with delay,
resulting in impairing the capability and ability of the accused to defend
himself, have persuaded the constitutional courts of the country to hold
the right to speedy trial a manifestation of fair, just and reasonable
procedure enshrined in article 21 of the Constitution. Rudal Shah v. State
of Bihar47, is a glaring example. In Hussainara Khatoon (I) v. Home
Secretary, State of Bihar48, the Court held that though speedy trial is not
specifically mentioned in our Constitution, it is implicit in the broad sweep
and contents of Article 21 as interpreted in Maneka Gandhi v. Union of
India49. The Court held that ‘procedure prescribed by law for depriving a
person of his liberty cannot be ‘reasonable’, fair and just unless that
procedure ensures a speedy trial for determination of the guilt of such
person.50 Similarly, when investigation commenced in November 1976 and

46
AIR 2004 SC 808; Confederation of Ex. Servicemen Association v Union of India, AIR
2006 SC 2945.
47
AIR 1983 SC 1086 : (1983) 4 SCC 141.
48
AIR 1979 SC 1360 : (1980) 1 SCC 81.
49
AIR 1978 SC 597 : (1978) 1 SCC 248.
50
Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939.
90 Uttarakhand Judicial & Legal Review

the Court took cognizance after ten years in March 1986, the Supreme
Court quashed the proceedings on the ground of delay in investigation and
commencement trial.51
Personal liberty is one of the cherished goals of the Indian
Constitution and the deprivation of the same can only be in accordance
with law and in conformity with the provisions thereof, as stipulated under
article 21 of the Constitution. The Supreme Court has settled the legal
position52 that to have speedy justice is a fundamental right, which flows
from article 21 of the Constitution. Despite the clear pronouncements of
the court on this point, cases involving delay in trial keep coming before
the court.
In Sajjan Kumar v. CBI53, the appellant was accused of his
involvement in anti-sikh riots which had taken place in October, 1984 and
charges were framed against him in May 2010 by the trial judge under
various sections of the Indian Penal Code, 1860. It was contended that
the continuation of the prosecution after about 23 years was against the
protection provided by article 21 of the Constitution. Sathasivam j, relying
on his own decision in P. Vijayan, held that though delay was also a
relevant factor and every accused was entitled to a speedy trial under
article 21, it would depend on various factors/reasons and materials placed
by the prosecution.
The Supreme Court in Common Cause (I)54, Common Cause
(II)55, Raj Deo Sharma (I)56 and Raj Deo Sharma (II)57, laid down bars
of limitation beyond which the trial shall not proceed and the accused
shall be acquitted. These decisions were either of two judge bench or
three judge bench strength. But these directions fixing the time limit within
which the trial should be completed were contrary to the observation of

51
Srinivas Gopal v. U.T. of Arunachal Pradesh, AIR 1988 SC 1729 : (1988) 4 SCC 36.
52
Abdul Rehman Antulay v. R.S.Nayak, (1992) 1 SCC 225; Common Cause, A Registered
Society v. Union of India (1996) 4 SCC 33; and (1996) 6 SCC 775 and Raj Deo Sharma
v. State of Bihar, (1998). 7 SCC 149.
53
(2010) 9 SCC 368.
54
‘Common Cause’ -A Registered Society v. Union of India, (1996) 4 SCC 33.
55
‘Common Cause’ -A Registered Society v. Union of India, (1996) 6 SCC 775.
56
Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507.
57
Raj Deo Sharma v. State of Bihar, (1999) 7 SCC 604.
Procedure Established by Law vis-a-vis due process : ........ 91

the Constitution bench in Abdul Rehman Antulay v. R.S. Naik58, wherein

the Supreme Court had observed that “it is not possible to lay down any
time schedules for conclusion of criminal proceedings” and it was further
observed that “it is neither advisable nor feasible to draw or prescribe an
outer time limit for conclusion of all criminal proceedings.59”
In Shatrughan Singh Chauhan vs. Union of India60, Supreme
Court held that undue, inordinate and unreasonable delay in disposal of
mercy petition violates Art. 21.
In Mohd. Hussain Alias Julfikar Ali v. State (Govt. of NCT),
61
Delhi , the Supreme Court held that ‘speedy trial’ and ‘fair trial’ to a
person accused of a crime are integral part of Article 21. There is, however,
qualitative difference between the right to speedy trial and the accused's
right of fair trial. Unlike the accused’s right of fair trial, deprivation of the
right to speedy trial does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature relative. It depends
upon diverse circumstances. Each case of delay in conclusion of criminal
trial has to be seen in the facts and circumstances of such case. Mere
lapse of several years since the commencement of prosecution by itself
may not justify the discontinuance of prosecution or dismissal of indictment.
The factors concerning the accused’s right to speedy trial have to be
weighed vis-a-vis the impact of the crime on society and the confidence
of the people in judicial system. Speedy trial secures rights to an accused
by it does not preclude the rights of public justice. The nature and gravity
of crime, persons involved, social impact and societal needs must be
weighed along with the right of the accused to speedy trial and if the
balance tilts in favour of the former the long delay in conclusion of criminal
trial should not operate against the continuation of criminal trial should not
operate against the continuation of prosecution and if the right to accused
in the facts and circumstances of the case and exigencies of situation tilts
the balance in his favour, the prosecution may be brought to an end. These
principles must apply as well when the appeal court is confronted with the
question whether or not retrial of an accused should be ordered.

58
(1992) 1 SCC 225.
59
Id. At 268-69.
60
Cri. L.J. 2014 SC 1327.
61
(2012) Cri. L. J. SC 4537.
92 Uttarakhand Judicial & Legal Review

VI. Conclusion-
The true nature and scope of the function of the courts has since
long been a matter of debate almost in all the countries regulated by
written Constitutions62. A. K. Gopalan was the initial example where the
Supreme Court did not favour the due process principle except Justice
Fazl Ali in his dissenting opinion. Although the interpretation given by the
Apex Court in Gopalan was very consistent with the intention of the
framers of Constitution but the abrogation of individual’s fundamental rights
was a matter of debate. It is submitted that the liberal interpretation of the
phrase ‘procedure established by law’ in Maneka Gandhi the court seems
to have taken into account the philosophy of law in interpreting the phrase
‘procedure established by law’ in term of not only what “it is” but also
what “it ought to be” and thereby seems to have moved towards due
process. An unelected judiciary which is not accountable to anyone except
its own temperament has taken over significant powers of Indian
Governance63. Further, enhancing personal liberty is a part of good
governance. Thus, we can say that the phrase ‘procedure established by
law’ under Art. 21 of the Indian Constitution has acquired the same
significance as the ‘due process of law’ clause in the Constitution of United
State of America.

**********

62
Also see, Dr. K.S. Rathore, “Right to life and personal liberty in India. - an assessment”,
All India Reporter Jan 2014 Vol. 101 - Part 1201.
63
See also, Dr. K.S. Rathore, “Institutional Strains Emanating from Judicial Activism in
India : An Assessment”, Civil & Military Law Journal, Oct. - Dec. 2013 Vol. 49.